1. The application under consideration is by the plaintiff/applicant dated 29/5/2025. The plaintiff/applicant seeks the following orders:
a. restoration of the plaintiff company to the Companies Register and for the company to continue to be in existence pending the hearing and determination of the present application.
b. restoration of the plaintiff company to the Companies Register and for the company to continue to be in existence pending the hearing and determination of the suit filed herein.
c. leave to be granted to the plaintiff/applicant to amend its plaint as per the draft amended plaint annexed to the supporting affidavit.
d. the draft amended plaint to be deemed as duly filed upon payment of the requisite court fees.
2. The application is filed under Articles 27, 47, 48, 160 and 165 of the Constitution of Kenya, Sections 916 and 919 of the Companies Act (Cap. 486) Laws of Kenya), sections 1A, 1В, and ЗA of the Civil Procedure Act (Cap 21) Laws of Kenya and Order 8 rule 5, Order 51 rules 1 and 3 of the Civil Procedure Rules 2010.
3. The several grounds in support of the application as laid out on the face thereof and expounded in the supporting affidavit sworn on 29/4/2025 by Khamisi Domoko, a director of the plaintiff company, can be summarized into this. That the plaintiff was duly registered by the Registrar of Companies, the 2nd defendant/respondent herein, on 18/2/2002 and has been carrying on business under the name and style of Tembo Tours and Safaris Limited. It has invested heavily in the name and is now renowned in the tourism industry as a leading tour operator.
4. However, on 17/6/2019, the Registrar of Companies, the 2nd respondent herein, informed it of the existence of another entity by the name of Tembo Tours and Safaris (Kenya) Limited, the 1st defendant/respondent herein, that was registered on 13/10/1971. Consequently, acting under section 58(1) of the Companies Act, the Registrar of Companies directed the plaintiff to change its company name within 30 days failure to which the plaintiff’s company name would be struck off the Register of Companies. It is the plaintiff’s contention that it was not aware of the existence of another company with a similar name. But after the Registrar of Companies issuing the plaintiff with the letter dated 17/6/2019, the plaintiff has experienced disruption in its business with its customers engaging the 1st defendant in the belief that they are dealing with the plaintiff. The plaintiff’s contention is that the Registrar’s directive is unfair as a change of name is going to affect its reputation, sales and success.
5. The plaintiff therefore filed suit herein through a plaint dated 19/4/2024 seeking orders that:
a. the 1st defendant Tembo Tours and Safaris (Kenya) Limited cease and desist from using the name which is similar to that of the plaintiff.
b. the 2nd defendant be compelled to ensure that the 1st defendant does not trade in the name similar to that of the plaintiff.
c. a declaration that owing to the doctrine of prior user, the plaintiff be allowed to exclusively trade in the name of Tembo Tours and Safaris (Diani) Limited to the exclusion of others including the 1st defendant herein.
d. General damages.
e. costs of the suit.
f. any other relief the court may deem fit and just to grant.
6. Alongside the plaint, the plaintiff filed a notice of motion under certificate of urgency of even date seeking orders of injunction against the 1st defendant from trading and/or conducting business in the name of Tembo Tours & Safaris (Kenya) Limited pending hearing and determination of the application and subsequently the suit.
7. The plaintiff sought leave of the court to serve the 1st respondent by way of advertisement in the print media and the application was granted on 2/10/2024.
8. On 6/11/2024, when parties appeared to confirm whether the 1st respondent had been served and the 2nd respondent had filed its reply to the application, counsel for the 2nd respondent Mr. Odhiambo informed the court, the Registrar of Companies had not filed a reply to the plaintiff’s application and that it was possible that the 1st respondent may already have been struck off the companies register and so he sought for more time to get a comprehensive report on the same.
9. However, the Registrar of Companies filed a replying affidavit sworn on 19/11/2024 by Sarah Wainaina an Assistant Registrar of Companies. She deposed that the records held at the Companies Registry showed that the 1st Defendant, Tembo Tours and Safaris (Kenya) Limited (C.10381) was incorporated on 13th October 1971 and its current directors were Jagjit Singh Kalsi and Kamaljit Singh Kalsi. That the 2nd defendant had discovered that an inadvertent error had occurred during name reservation that occasioned the registration of the Plaintiff company “TEMBO TOURS AND SAFARIS (DIANI) LIMITED” as the 2nd company in time after the incorporation of “TEMBO TOURS AND SAFARIS (KENYA) LIMITED” being the first in time. That having discovered the error it was no longer tenable within the meaning of Section 57 of the Companies Act, 2015 as read with Regulation 11(a), (b) (c) & regulation 13 of the Companies (General) regulations, 2015 made pursuant to section 59 of the Companies Act, 2015 for the two companies with almost similar names to exist.
10. That the Registrar of Companies therefore, in consideration of the provisions of fair administrative action as guaranteed by the Constitution of Kenya 2010 and the Fair Administrative Action Act on fair hearing, vide a letter dated 17th June 2019, the Registrar issued a directive pursuant to section 58(2) of the Companies Act to the Plaintiff company – Tembo Tours and Safaris (Diani) Limited (C.97361) to change its company name within 30 days, failure to which the 2nd Defendant would invoke the provisions of Section 58(5), (6) and (7) of the Companies (Amendment) Act No. 28 of 2017 and strike off the plaintiff’s registration from its register. She deposes further that the said provisions provide an ample opportunity and timelines and procedures to be followed which essentially will not prejudice the Plaintiff Company. That owing to the doctrine of prior user, the Plaintiff company should be struck off the companies Register.
11. In a further affidavit sworn on 2/1/2025 basically in response to the 2nd respondent’s replying affidavit, the plaintiff deposes that the Registrar of Companies has admitted that registration of the plaintiff’s company under the present name was an inadvertent error. But that having issued to the plaintiff the directive to change its name on 17/6/2019 and then in exercise of her powers under the Act extended the same until some 15 years later in 2024, the decision is unfair as the plaintiff had made considerable investment to build its brand. It is the plaintiff’s position that the Registrar has offended the provisions of Article 47 of the Constitution of Kenya which provides for fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and consequently, the Registrar should be compelled to compensate the plaintiff.
12. The plaintiff company complains through the depositions in the further affidavit that the period of 30 days issued for it to change its name was way too short and therefore prejudicial to the plaintiff.
13. The court then issued directions that the application be disposed of by way of written submissions. The plaintiff filed its submissions dated 11/2/2025. The 2nd respondent sought more time to file its submissions. But when the matter came up on 26/2/2025 to confirm compliance, learned counsel for the 2nd respondent informed the court that they had not filed their submissions and in fact the Registrar had struck off the plaintiff from the register of companies vide gazetter Notice No. 16998 of 11/12/2024, the effect being that the company no longer existed.
14. The 2nd respondent then filed a further affidavit sworn on 4/3/2025 deposing to the changed circumstances. It was deposed that owing to the doctrine of prior user, the Plaintiff company was struck off the register of companies vide a Gazette Notice No. 16998 dated 11th December 2024 and the effect of the Gazette Notice was that the Plaintiff Company no longer exists in the register of companies.
15. These developments caused the plaintiff to file the present application. The court directed that the same be disposed of before the earlier application which would be held in abeyance. The court also granted the prayer for temporary restoration of the plaintiff company to the Companies Register and for the company to continue to be in existence pending the hearing and determination of the present application in order to enable the plaintiff to prosecute this application.
16. The grounds in support of the application as appearing on the face thereof and expounded in the supporting affidavit of Khamisi Domoko sworn on 29/4/2025 are largely the same as for the prior application with the additional grounds that the 2nd respondent published the gazette notice dated 27/12/2024 striking out the plaintiff from the Companies Register with the intention of defeating the suit herein thereby occasioning a miscarriage of justice. It avers further that due to these developments, amendment of the plaint is imperative in the interest of justice.
17. The 1st and 2nd respondents have not filed any response to the present application and learned counsel for the plaintiff/applicant prays that the same be granted as prayed.
18. I have considered the application, the grounds in support and the supporting affidavit. The plaintiff/applicant herein is seeking an injunction to compel the Registrar of Companies to restore the registration of the plaintiff company on the register of companies pending the hearing and determination of the plaintiff’s suit. In the case of New Ocean Transport Limited & another v Anwar Mohamed Bayusuf Limited [2014] KECA 268 (KLR) the Court of Appeal explained the nature of an injunction and set out the various types of injunctions thus:
“We appreciate that an injunction is an order of the Court directing a party to the proceedings to do something or refrain from doing a specified act. It is granted in cases in which monetary compensation affords an inadequate remedy to an injured party. See Halsbury’s Laws of England 3rd edition, vol.21 at pg. 343. Basically, there are 2 types of injunctions; positive and negative. The positive injunction would direct a party to do something whereas a negative one will restrain such a person from doing something. Among the positive injunctions will be mandatory injunction. This injunction orders some act to be done. Part of this family is the restorative injunction being sought by the applicants in the instant application. This type of injunction requires the person against whom it is directed to undo a wrongful act, to restore the status quo ante so that the damage does not continue. Then there is the mandatory injunction perse which compels a party to carry out some positive act to remedy a wrongful omission. As for negative injunctions, these would include prohibitory, perpetual, interlocutory and Quia Timet injunctions.”
19. From the foregoing exposition, it is apparent that the plaintiff herein is seeking a restorative injunction, that its name be restored to the register of companies pending the hearing of its suit against the 1st defendant that has a name similar to that of the plaintiff and the Registrar of Companies who on account of the similarity has struck out the plaintiff’s name from the Companies Register.
20. The Court of Appeal in the case of Kenya Breweries Ltd vs Washington Okeyo (2002) EA 109 considered the principles that govern the grant of mandatory injunctions and held that the test for grant of a mandatory injunction was as stated in VOL 24 of Halsbury’s Laws of England 4th Edition paragraph 948 that:-
“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but in the absence of special circumstances, it will not normally, be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is simple and summary one which can be easily remedied, or if the defendant attempts to steal a match on the plaintiff, a mandatory injunction will be granted on an interlocutory application.
In the English case of Locabail International Finance Ltd vs Agro Export & Another (1986), ALI ER 901 which the Court of Appeal in Kenya has followed with approval in many decisions, the court held that: -
“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory injunction, the court has to feel a high sense of assurance that at the end of the trial it would appear that the injunction had been rightly granted, that being a different and higher standard than required for a prohibitory injunction.”
21. The application herein is not opposed and I am satisfied that it has merit for three reasons.
22. First, the 2nd respondent has conceded that it made an inadvertent error in registering the name of the plaintiff as a limited liability company. It means it did not carry out due diligence of its register to confirm that there was a company registered earlier with a similar name. After the error was discovered, the Registrar acting under section 58 of the Companies Act issued a notice to the plaintiff to change its name. The Plaintiff did not comply and it appears the Registrar did not invoke her powers to strike out the company until this matter was filed in court some 15 years later. The 2nd respondent took an inordinately long time to act thereby giving the plaintiff the impression that it could still carry on its business under the impugned name.
23. Secondly, when this matter was filed in court, the Registrar of companies through her representative, the learned counsel who appeared in court stated that there was a possibility that the 1st respondent had been struck off the register. This reinforced the plaintiff’s belief that it could properly continue carrying on its business under its brand name. It was only afterwards that the learned counsel for the 2nd respondent came back to court with the replying affidavit stating that in fact, the plaintiff was the one which had been directed to change its name. Considering the lapse of time from 17/6/2019 to 27/12/2024 the plaintiff was right made to believe that it was properly on the register of companies and therefore could continue to exist as such.
24. Third, the plaintiff has deposed in its further affidavit that the 1st respondents’ particulars in the company register are incomplete as it does not show its official address, contact or postal address. This brings into question the proper existence of the 1st respondent. These are issues which need to be fully canvassed at the hearing of the suit. However, without waiting for the determination of the suit to which it is a party, the 2nd respondent without warning to the plaintiff struck it off the register of companies. Clearly, that conduct of the part of the 2nd respondent amounts to stealing a match against the applicant and this calls for a restorative injunction to issue to enable the plaintiff prosecute its case to its logical conclusion.
25. Consequently, I am satisfied that the plaintiff has established a prima facie case with a probability of success, that damages may not adequately compensate it for any losses it may incur by being struck off the register of companies in the manner done by the 2nd respondent and that the balance of convenience tilts in favour of granting the orders sought.
26. The plaintiff/applicant also prays for leave to amend the plaint.
27. The general power to amend pleadings is provided for under Order 8 rule 5(1) of the CPR as follows:
(1) For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just.
28. The principles to be considered in an application for amendment of pleadings are as outlined by the Court of Appeal in the case of Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] KECA 345 (KLR) as follows: -
“The law on amendment of pleading in terms of section 100 of the Civil Procedure Act and Order VIA rule 3 of the repealed Civil Procedure Rules under which the application was brought was summarized by this Court, quoting from Bullen and Leake & Jacob’s Precedents of Pleading - 12th Edition, in the case of Joseph Ochieng & 2 others vs. First National Bank of Chicago, Civil Appeal No. 149 of 1991 as follows: -
“The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages); that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; that the proposed amendment must not be immaterial or useless or merely technical; that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action; that the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts.”
29. In the present case, it is apparent that there was fundamental change of circumstances with regard to the suit filed by the plaintiff with the Registrar of Companies taking the step to strike the plaintiff off the companies register when this case was pending in court. The application was made timeously, within a short time of the plaintiff being informed of the action by the Registrar of Companies. I note that neither of the defendants has filed a defence to the suit.
30. I have considered the draft amended plaint and I find that the proposed amendments are material to the determination of the real issues in controversy. The first amendment seeks to strike out the word “Diani” from the plaintiff’s name as registered so as to read “Tembo Tours and Safaris Limited.” If that amendment is not made, it will mean the suit will be by a different entity other than the correct plaintiff. The other amendments, including the reliefs sought, seek to align the plaintiff’s case with the changed circumstances of its being struck off the companies register. I find it imperative that the plaintiff be accorded the opportunity to plead the real issues for the court’s determination rather than having to file another suit. I am satisfied that the application for amendment has merit.
31. Consequently, this court grants the orders sought as per paragraphs 1(b) to (d) above.
32. Costs shall be in the cause.
33. Mention 22/10/2025 MNTI.
Orders accordingly.
Written, dated, signed and delivered on the virtual platform, Teams this 4th day of August 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Kamau for the Plaintiff/Applicant.
N/A for the 1st Defendant/Respondent.
N/A for the 2nd Defendant/Respondent.
Ummu: Court assistant.
a. restoration of the plaintiff company to the Companies Register and for the company to continue to be in existence pending the hearing and determination of the present application.
b. restoration of the plaintiff company to the Companies Register and for the company to continue to be in existence pending the hearing and determination of the suit filed herein.
c. leave to be granted to the plaintiff/applicant to amend its plaint as per the draft amended plaint annexed to the supporting affidavit.
d. the draft amended plaint to be deemed as duly filed upon payment of the requisite court fees.
2. The application is filed under Articles 27, 47, 48, 160 and 165 of the Constitution of Kenya, Sections 916 and 919 of the Companies Act (Cap. 486) Laws of Kenya), sections 1A, 1В, and ЗA of the Civil Procedure Act (Cap 21) Laws of Kenya and Order 8 rule 5, Order 51 rules 1 and 3 of the Civil Procedure Rules 2010.
3. The several grounds in support of the application as laid out on the face thereof and expounded in the supporting affidavit sworn on 29/4/2025 by Khamisi Domoko, a director of the plaintiff company, can be summarized into this. That the plaintiff was duly registered by the Registrar of Companies, the 2nd defendant/respondent herein, on 18/2/2002 and has been carrying on business under the name and style of Tembo Tours and Safaris Limited. It has invested heavily in the name and is now renowned in the tourism industry as a leading tour operator.
4. However, on 17/6/2019, the Registrar of Companies, the 2nd respondent herein, informed it of the existence of another entity by the name of Tembo Tours and Safaris (Kenya) Limited, the 1st defendant/respondent herein, that was registered on 13/10/1971. Consequently, acting under section 58(1) of the Companies Act, the Registrar of Companies directed the plaintiff to change its company name within 30 days failure to which the plaintiff’s company name would be struck off the Register of Companies. It is the plaintiff’s contention that it was not aware of the existence of another company with a similar name. But after the Registrar of Companies issuing the plaintiff with the letter dated 17/6/2019, the plaintiff has experienced disruption in its business with its customers engaging the 1st defendant in the belief that they are dealing with the plaintiff. The plaintiff’s contention is that the Registrar’s directive is unfair as a change of name is going to affect its reputation, sales and success.
5. The plaintiff therefore filed suit herein through a plaint dated 19/4/2024 seeking orders that:
a. the 1st defendant Tembo Tours and Safaris (Kenya) Limited cease and desist from using the name which is similar to that of the plaintiff.
b. the 2nd defendant be compelled to ensure that the 1st defendant does not trade in the name similar to that of the plaintiff.
c. a declaration that owing to the doctrine of prior user, the plaintiff be allowed to exclusively trade in the name of Tembo Tours and Safaris (Diani) Limited to the exclusion of others including the 1st defendant herein.
d. General damages.
e. costs of the suit.
f. any other relief the court may deem fit and just to grant.
6. Alongside the plaint, the plaintiff filed a notice of motion under certificate of urgency of even date seeking orders of injunction against the 1st defendant from trading and/or conducting business in the name of Tembo Tours & Safaris (Kenya) Limited pending hearing and determination of the application and subsequently the suit.
7. The plaintiff sought leave of the court to serve the 1st respondent by way of advertisement in the print media and the application was granted on 2/10/2024.
8. On 6/11/2024, when parties appeared to confirm whether the 1st respondent had been served and the 2nd respondent had filed its reply to the application, counsel for the 2nd respondent Mr. Odhiambo informed the court, the Registrar of Companies had not filed a reply to the plaintiff’s application and that it was possible that the 1st respondent may already have been struck off the companies register and so he sought for more time to get a comprehensive report on the same.
9. However, the Registrar of Companies filed a replying affidavit sworn on 19/11/2024 by Sarah Wainaina an Assistant Registrar of Companies. She deposed that the records held at the Companies Registry showed that the 1st Defendant, Tembo Tours and Safaris (Kenya) Limited (C.10381) was incorporated on 13th October 1971 and its current directors were Jagjit Singh Kalsi and Kamaljit Singh Kalsi. That the 2nd defendant had discovered that an inadvertent error had occurred during name reservation that occasioned the registration of the Plaintiff company “TEMBO TOURS AND SAFARIS (DIANI) LIMITED” as the 2nd company in time after the incorporation of “TEMBO TOURS AND SAFARIS (KENYA) LIMITED” being the first in time. That having discovered the error it was no longer tenable within the meaning of Section 57 of the Companies Act, 2015 as read with Regulation 11(a), (b) (c) & regulation 13 of the Companies (General) regulations, 2015 made pursuant to section 59 of the Companies Act, 2015 for the two companies with almost similar names to exist.
10. That the Registrar of Companies therefore, in consideration of the provisions of fair administrative action as guaranteed by the Constitution of Kenya 2010 and the Fair Administrative Action Act on fair hearing, vide a letter dated 17th June 2019, the Registrar issued a directive pursuant to section 58(2) of the Companies Act to the Plaintiff company – Tembo Tours and Safaris (Diani) Limited (C.97361) to change its company name within 30 days, failure to which the 2nd Defendant would invoke the provisions of Section 58(5), (6) and (7) of the Companies (Amendment) Act No. 28 of 2017 and strike off the plaintiff’s registration from its register. She deposes further that the said provisions provide an ample opportunity and timelines and procedures to be followed which essentially will not prejudice the Plaintiff Company. That owing to the doctrine of prior user, the Plaintiff company should be struck off the companies Register.
11. In a further affidavit sworn on 2/1/2025 basically in response to the 2nd respondent’s replying affidavit, the plaintiff deposes that the Registrar of Companies has admitted that registration of the plaintiff’s company under the present name was an inadvertent error. But that having issued to the plaintiff the directive to change its name on 17/6/2019 and then in exercise of her powers under the Act extended the same until some 15 years later in 2024, the decision is unfair as the plaintiff had made considerable investment to build its brand. It is the plaintiff’s position that the Registrar has offended the provisions of Article 47 of the Constitution of Kenya which provides for fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and consequently, the Registrar should be compelled to compensate the plaintiff.
12. The plaintiff company complains through the depositions in the further affidavit that the period of 30 days issued for it to change its name was way too short and therefore prejudicial to the plaintiff.
13. The court then issued directions that the application be disposed of by way of written submissions. The plaintiff filed its submissions dated 11/2/2025. The 2nd respondent sought more time to file its submissions. But when the matter came up on 26/2/2025 to confirm compliance, learned counsel for the 2nd respondent informed the court that they had not filed their submissions and in fact the Registrar had struck off the plaintiff from the register of companies vide gazetter Notice No. 16998 of 11/12/2024, the effect being that the company no longer existed.
14. The 2nd respondent then filed a further affidavit sworn on 4/3/2025 deposing to the changed circumstances. It was deposed that owing to the doctrine of prior user, the Plaintiff company was struck off the register of companies vide a Gazette Notice No. 16998 dated 11th December 2024 and the effect of the Gazette Notice was that the Plaintiff Company no longer exists in the register of companies.
15. These developments caused the plaintiff to file the present application. The court directed that the same be disposed of before the earlier application which would be held in abeyance. The court also granted the prayer for temporary restoration of the plaintiff company to the Companies Register and for the company to continue to be in existence pending the hearing and determination of the present application in order to enable the plaintiff to prosecute this application.
16. The grounds in support of the application as appearing on the face thereof and expounded in the supporting affidavit of Khamisi Domoko sworn on 29/4/2025 are largely the same as for the prior application with the additional grounds that the 2nd respondent published the gazette notice dated 27/12/2024 striking out the plaintiff from the Companies Register with the intention of defeating the suit herein thereby occasioning a miscarriage of justice. It avers further that due to these developments, amendment of the plaint is imperative in the interest of justice.
17. The 1st and 2nd respondents have not filed any response to the present application and learned counsel for the plaintiff/applicant prays that the same be granted as prayed.
18. I have considered the application, the grounds in support and the supporting affidavit. The plaintiff/applicant herein is seeking an injunction to compel the Registrar of Companies to restore the registration of the plaintiff company on the register of companies pending the hearing and determination of the plaintiff’s suit. In the case of New Ocean Transport Limited & another v Anwar Mohamed Bayusuf Limited [2014] KECA 268 (KLR) the Court of Appeal explained the nature of an injunction and set out the various types of injunctions thus:
“We appreciate that an injunction is an order of the Court directing a party to the proceedings to do something or refrain from doing a specified act. It is granted in cases in which monetary compensation affords an inadequate remedy to an injured party. See Halsbury’s Laws of England 3rd edition, vol.21 at pg. 343. Basically, there are 2 types of injunctions; positive and negative. The positive injunction would direct a party to do something whereas a negative one will restrain such a person from doing something. Among the positive injunctions will be mandatory injunction. This injunction orders some act to be done. Part of this family is the restorative injunction being sought by the applicants in the instant application. This type of injunction requires the person against whom it is directed to undo a wrongful act, to restore the status quo ante so that the damage does not continue. Then there is the mandatory injunction perse which compels a party to carry out some positive act to remedy a wrongful omission. As for negative injunctions, these would include prohibitory, perpetual, interlocutory and Quia Timet injunctions.”
19. From the foregoing exposition, it is apparent that the plaintiff herein is seeking a restorative injunction, that its name be restored to the register of companies pending the hearing of its suit against the 1st defendant that has a name similar to that of the plaintiff and the Registrar of Companies who on account of the similarity has struck out the plaintiff’s name from the Companies Register.
20. The Court of Appeal in the case of Kenya Breweries Ltd vs Washington Okeyo (2002) EA 109 considered the principles that govern the grant of mandatory injunctions and held that the test for grant of a mandatory injunction was as stated in VOL 24 of Halsbury’s Laws of England 4th Edition paragraph 948 that:-
“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but in the absence of special circumstances, it will not normally, be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is simple and summary one which can be easily remedied, or if the defendant attempts to steal a match on the plaintiff, a mandatory injunction will be granted on an interlocutory application.
In the English case of Locabail International Finance Ltd vs Agro Export & Another (1986), ALI ER 901 which the Court of Appeal in Kenya has followed with approval in many decisions, the court held that: -
“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory injunction, the court has to feel a high sense of assurance that at the end of the trial it would appear that the injunction had been rightly granted, that being a different and higher standard than required for a prohibitory injunction.”
21. The application herein is not opposed and I am satisfied that it has merit for three reasons.
22. First, the 2nd respondent has conceded that it made an inadvertent error in registering the name of the plaintiff as a limited liability company. It means it did not carry out due diligence of its register to confirm that there was a company registered earlier with a similar name. After the error was discovered, the Registrar acting under section 58 of the Companies Act issued a notice to the plaintiff to change its name. The Plaintiff did not comply and it appears the Registrar did not invoke her powers to strike out the company until this matter was filed in court some 15 years later. The 2nd respondent took an inordinately long time to act thereby giving the plaintiff the impression that it could still carry on its business under the impugned name.
23. Secondly, when this matter was filed in court, the Registrar of companies through her representative, the learned counsel who appeared in court stated that there was a possibility that the 1st respondent had been struck off the register. This reinforced the plaintiff’s belief that it could properly continue carrying on its business under its brand name. It was only afterwards that the learned counsel for the 2nd respondent came back to court with the replying affidavit stating that in fact, the plaintiff was the one which had been directed to change its name. Considering the lapse of time from 17/6/2019 to 27/12/2024 the plaintiff was right made to believe that it was properly on the register of companies and therefore could continue to exist as such.
24. Third, the plaintiff has deposed in its further affidavit that the 1st respondents’ particulars in the company register are incomplete as it does not show its official address, contact or postal address. This brings into question the proper existence of the 1st respondent. These are issues which need to be fully canvassed at the hearing of the suit. However, without waiting for the determination of the suit to which it is a party, the 2nd respondent without warning to the plaintiff struck it off the register of companies. Clearly, that conduct of the part of the 2nd respondent amounts to stealing a match against the applicant and this calls for a restorative injunction to issue to enable the plaintiff prosecute its case to its logical conclusion.
25. Consequently, I am satisfied that the plaintiff has established a prima facie case with a probability of success, that damages may not adequately compensate it for any losses it may incur by being struck off the register of companies in the manner done by the 2nd respondent and that the balance of convenience tilts in favour of granting the orders sought.
26. The plaintiff/applicant also prays for leave to amend the plaint.
27. The general power to amend pleadings is provided for under Order 8 rule 5(1) of the CPR as follows:
(1) For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just.
28. The principles to be considered in an application for amendment of pleadings are as outlined by the Court of Appeal in the case of Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] KECA 345 (KLR) as follows: -
“The law on amendment of pleading in terms of section 100 of the Civil Procedure Act and Order VIA rule 3 of the repealed Civil Procedure Rules under which the application was brought was summarized by this Court, quoting from Bullen and Leake & Jacob’s Precedents of Pleading - 12th Edition, in the case of Joseph Ochieng & 2 others vs. First National Bank of Chicago, Civil Appeal No. 149 of 1991 as follows: -
“The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages); that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; that the proposed amendment must not be immaterial or useless or merely technical; that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action; that the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts.”
29. In the present case, it is apparent that there was fundamental change of circumstances with regard to the suit filed by the plaintiff with the Registrar of Companies taking the step to strike the plaintiff off the companies register when this case was pending in court. The application was made timeously, within a short time of the plaintiff being informed of the action by the Registrar of Companies. I note that neither of the defendants has filed a defence to the suit.
30. I have considered the draft amended plaint and I find that the proposed amendments are material to the determination of the real issues in controversy. The first amendment seeks to strike out the word “Diani” from the plaintiff’s name as registered so as to read “Tembo Tours and Safaris Limited.” If that amendment is not made, it will mean the suit will be by a different entity other than the correct plaintiff. The other amendments, including the reliefs sought, seek to align the plaintiff’s case with the changed circumstances of its being struck off the companies register. I find it imperative that the plaintiff be accorded the opportunity to plead the real issues for the court’s determination rather than having to file another suit. I am satisfied that the application for amendment has merit.
31. Consequently, this court grants the orders sought as per paragraphs 1(b) to (d) above.
32. Costs shall be in the cause.
33. Mention 22/10/2025 MNTI.
Orders accordingly.
Written, dated, signed and delivered on the virtual platform, Teams this 4th day of August 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Kamau for the Plaintiff/Applicant.
N/A for the 1st Defendant/Respondent.
N/A for the 2nd Defendant/Respondent.
Ummu: Court assistant.